The Problem of Accountability in Judicial Law Making: An Analysis of India

Every government organisation has different roles and is accountable to some other agency. Even every government officer and body is also fully answerable to the Judiciary of the country. But when it comes to the Judiciary itself, a different set of rules and a different set of levels are followed. The Judiciary has become a judge in its cause. Judicial corruption is not a new phenomenon and has always been a part and parcel of the working of the judiciary but the recent scandals have created much concern about the slowly rotting state of the Courts. The question that is raised that, to whom are the Judges accountable? It is a very valid and justifiable question. The judiciary is neither accountable to the people as the people do not elect the members of the judiciary nor responsible to the other bodies of the government due to the doctrine of separation of power and Judicial independence.

Table of Contents

The Backdrop

An active role of the Indian judiciary over the functions falling constitutionally within the legislative competence raises certain serious and prominent issues in India. This aspect of ‘Judicial Activism’ equally holds the debatable field amongst others since judge-made law has gained vast recognition throughout the world. The Indian Supreme Court has contributed to such recognition to a very large extent by giving directions to the government from time to time seeking compliance under its contempt power and many times by legislating exactly in a manner akin to the legislature. Such instances of judicial intervention call for a need to closely scrutinize the essence and the constitutional perspective of the lawmaking function of judges in distinction with the constitutionally conferred legislative powers of the legislature.

Do Judges Make Law?

No informed citizen who is governed under a modern Constitution disputes the notion that judges do make law, especially the judges of constitutional courts. This is so since such courts have meticulously come at par with the expectations of the people and the changing social circumstances by way of their ‘interpretative skills’. In the Indian context, a glaring example of this fact can best be evidenced by the complete shift accorded by the Supreme Court of India in interpreting Art.21 of the Constitution from the A.K Gopalan to the Maneka Gandhi case. Further, innovations in the field of Public Interest Litigations (PIL) have also provided thrust to the undisputable notion that judges do indeed make law through directions.

Judiciary: A Tool of Law-Making

It is indeed true that within the given setup of separation of powers, the legislature under the Indian Constitution acts as a prime mover in enacting laws to suit the changing circumstances of society. However, the role of the judiciary is also largely acknowledged since judges, while dealing with real-life situations to adjudicate upon, do get opportunities to interpret the existing laws and apply them in a given situation to cater to the changing needs and keep pace with varying societal situations. The chief reason that can be attributed to such an important facet of the judicial function is the undisputed fact that law by its very nature is organic. No legislature can foresee, with reasonable certainty, the future and forthcoming contingencies that the law attempts to address. Practically, every enacted law on a probing analysis reveals certain gaps that the judiciary is expected to fill up by way of interpretation. This is popularly known as Judicial Legislation.

Judicial law-making is a stark fact of the modern age. There are various techniques adopted by judges in creating new rules. Precedent, construction of statutes, supplying the omission of the legislature, or filling the gaps by using discretion are some of the tools used by the judges for creating law.

Independence of The Judiciary

Independence is a bulwark of the rule of law. If the law is to be applied equally to all citizens in the country, then it is equally important that the judges should be independent in applying the law and rendering judicial decisions. Judges can be subject to threats and pressures from litigants, including society’s criminal element. Independence of the judiciary is a recognized principle adopted by most democratic countries.

Judicial Accountability And Its Concernment

The word ‘accountable’ as defined in the Oxford Dictionary means ‘responsible for your own decisions or actions and expected to explain to them when you are asked.’ Accountability is the sine qua non of democracy. It is a well-settled principle of modern-day governance that an authority deriving its existence from the same source cannot claim to be absolute and unaccountable. It must be accountable either to the source of its origin, to the institution, and more importantly to the people. Judicial accountability is a corollary of the independence of the judiciary. Simply put, accountability refers to taking responsibility for your actions and decisions. It generally means being responsible to any external body; some may insist on accountability to principles or to oneself rather than to any authority with the power of punishment or correction. Since accountability is a facet of independence the Constitution has provided in Article 235, for the ‘control’ of the High Court over the Subordinate Judiciary indicating the provision of an effective mechanism to enforce accountability. All wings of Government belong to the people, when the legislature and the executive both are accountable, the judiciary cannot remain unaccountable and absolute. No person, however high is above the law similarly, no institution howsoever sanctified can claim to be unaccountable. Ultimately, every institution is accountable to the people in every democratic polity like ours. At the same time, judicial independence is a pre-requisite for every judge whose oath of office requires him to act without fear and to uphold the constitution and laws of the country. Thus, there arises a tension between Judicial Independence and Judicial Accountability.

Judicial Accountability In Some Developing Countries In The World

Australia

The federal judiciary enjoys constitutional protection in terms of appointment and removal of judges by Section 72 of the Federal Court of Australia Act. Removal can only occur through proven misbehaviour or incapacity. Removal must be effected by the Governor General on an address from both houses of parliament in the same sitting on either of the two grounds listed above. A more formal mechanism for considering complaints was established to address the Judicial Commission of New South Wales. The New South Wales statute requires the Commission to dismiss complaints in several specified circumstances: including where there is a right of appeal, where the complaint is frivolous or trivial, or where further consideration is unnecessary or unjustifiable.

United States

Article III of the US Constitution establishes the judiciary as an independent third branch of government. Article III gives the judiciary the power to hear and adjudicate all cases arising out of the Constitution and laws of the USA with impartiality. Article III also states that federal judges can only be removed through impeachment by the House of Representatives and conviction by the US Senate for “treason, bribery or other high crimes. or misdemeanours.” Short of removal, federal judges can be disciplined for violations of the Code of Conduct for United States Judges set of ethical principles and guidelines adopted by the Judicial Conference of the United States.

Canada

In Canada, the independence of the federally appointed judiciary is guaranteed by the Canadian Constitution (namely sections 96 to 100 of the Constitution Act, 1867) which provides for the appointment, security of tenure, and financial security of superior court judges. This provision aims to ensure judicial independence by making it extremely difficult to remove judges from office for political or other reasons. The 1971 amendments to the Judges Act created the Canadian Judicial Council and gave it statutory authority to investigate complaints against federally appointed judges. Judicial Independence is also guaranteed by the Canadian Charter of Rights and Freedoms, Schedule B to the Constitution Act, 1982. Under Section 63(2) of the Judges Act, any member of the public (including a provincial attorney general or the federal Minister of Justice) may make a complaint about a federally appointed judge by writing to the Canadian Judicial Council.

Constitutional Provisions For Making The Judiciary Accountable

The fact that the powers of judges are very wide is in itself an indication that the powers may not be allowed to be absolute. Among the constitutional limitations on the judges, the most important one is the provision for the ‘removal’ of judges of the High Court’s /Supreme Court by the address of the Houses of Parliament to the President on the ground of ‘proved misbehaviour or incapacity. This is provided in the Constitution of India, Article 124(2) and (4) in respect of judges of the Supreme Court, and view of Article 217, that procedure is attracted to the ‘removal’ of judges of the High Court also. In pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry) Act, 1968 was enacted to regulate the procedure for investigation and proof of the “misbehaviour” or incapacity of a Judge of the Supreme Court or a High Court and for the presentation of an address by Parliament to the President and matters connected therewith.

Problems Of Accountability In Judicial Law-Making In India

There are so many problems of Judicial accountability shown in India. These are as follows:

The Contempt of Courts Act

One of the critical reasons for the low accountability of judges in India is the power of the Courts to punish for its Contempt. The Contempt of Court Act defines Contempt as Civil or Criminal. The main purpose of the Contempt Power has been to enable the court to be able to enforce its orders and to punish obstruction in the administration of justice. But over the years this power has been considerably widened and freely used by the courts. Today, in countries like UK and U.S.A. the concept has been liberalized. But India still follows the old British-rule norms, which undoubtedly was not a free democracy. The power of contempt cannot be the answer to the sincere critique of the working of the judiciary. The argument that the court’s integrity and esteem can be injured if appropriate action is not taken does not hold any water. When the courts decide to use the contempt power, they ordinarily tarnish their reputation further by showing a bigoted attitude. It is high time that the Courts interpret the Contempt of Courts Act more liberally and realize that justice is more important than individual egos. In a healthy democratic state public opinion, discussions, awareness, and debates are imperative to the progress of the nation. This is impossible in a system where the media, jurists, and other citizens are silenced due to the fear of being subjugated to contempt laws. Judiciary has to earn reverence through the test of truth and not by fear. So, there is a need for serious reforms in the law of contempt to make the Judiciary more accountable.

Appointment and Selection of Judges

The Indian Constitution states that the Supreme Court of India will comprise the Chief Justice of India and at the most 7 other judges. This number has now been increased to 25. The Supreme Court judges are appointed by the President in consultation with other judges of the Supreme Court and High Court. Other than in the case of the appointment of the Chief Justice of India himself, the President has to consult the Chief Justice of India when appointing the other judges. High Court judges are also appointed by the President on the recommendation of the Chief Justice of India and the Governor of the concerned state. The Chief Justice of the High Court is also consulted for appointing the judges, other than for the appointment of the Chief Justice himself. The whole procedure is ad hoc and arbitrary. There are no clear grounds according to which the judges are recommended. There is such secrecy surrounding the whole modus operandi and it is defended with ambiguity. The only trend that emerges is that well-connected people are appointed. Proximity to power has become a criterion. What is amazing to note is that, in the lack of a mechanism for making judges accountable, a judge with doubtful integrity and motives is also appointed as the judge even after questions are raised regarding the suitability of him as a judge. This is well illustrated by the case of Justice Ashok Kumar. The collegium of three senior judges of the Supreme Court unanimously decided not to confirm him as a permanent judge in August 2005 because of serious doubts regarding his integrity. Despite this, his appointment was confirmed in February 2007 on the Chief Justice’s recommendation.

Limited Mechanism for Removal

Impeachment is the only mechanism through which a judge can be removed and there are many limitations found in this process making it very difficult in bringing judicial accountability. When there is no majority to oust a judge in the parliament, the judge cannot be removed. In the case of Justice v. Ramaswamy, the former chief justice of Punjab and Haryana high court, the inquiry committee found him guilty on most of the charges but he was not removed from his office as the motion did not attain the required majority in the parliament.

Judges Inquiry Act

The judiciary is under immense pressure when it deals with any high-profile case that would have an impact on society or would completely turn the tables for the political domains. This was witnessed by the people of the country during the Sabarimala judgment, the Adhaar judgment, and the Keshavnanda Bharti case. This pressure or the crumbling atmosphere creates immense external pressure on the judiciary not to compromise with any of these external factors the judiciary came up with an in-house mechanism to investigate corruption within the judiciary. This was proposed by the Judges Inquiry Act Amendment Bill 2006 which provided for a National Judicial Council consisting of the Chief Justice of India, two senior-most judges of the Supreme Court, and two Chief justices of High courts as members to enquire into the allegations of “proved misbehaviour” or “incapacity”.18 What is more objectionable in this report is Section 33 of the act which states not to disclose any information relating to the complaint to any person in any proceeding except when directed by the Council. This somehow is a flaw in the whole process as the things investigated are never publicized and never under the public domain and even if it finds or gets to prove misbehaviour or incapacity, it can only suggest introducing the process of impeachment in the house which can again be struck down which was seen earlier in Ramaswamy’s and Justice Bhalla’s case. Thus, the only positive which can be drawn out of the Act is that the committee can only recommend initiating the process of impeachment.

Remediable Steps By The Government For Preventing The Problem Of Judicial Accountability

There are some steps have been taken by the Government for preventing the problem of judicial accountability. These are as follows-

Judicial Standard and Accountability Bill, 2010

The Judicial Standards and Accountability Bill, 2010 replaces the Judges Inquiry Act, 1968. It seeks to create enforceable standards for the conduct of Judges of High Courts and the Supreme Court, change the existing mechanism for an investigation into allegations of ‘misbehavior’ or incapacity of Judges of High Courts and Judges of Supreme Courts, change the process of removal of Judges, enable minor disciplinary measures to be taken against Judges, enable minor disciplinary measures to be taken against judges, and require the declaration of assets of Judges.

Loopholes in the Bill

The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. The Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change. The Bill makes no mention of whether a judge who has been removed has a right to appeal to the Supreme Court. The Standing Committee has stated that there should not be any provision for appeal as the finality of a Presidential order should not be challenged. Thus, it is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the ends of the judiciary.

Lokpal Bill

With the Lokpal bill being in news, it becomes necessary to look at what it thinks about judicial accountability. To begin with there are two versions of the Lokpal bill. In the Government version, the judges are not brought under scrutiny. It will be only an advisory body and therefore the Lokpal cannot register an FIR on any complaint. The Lokpal will comprise three members and all will be retired judges, now this committee will be selected by politicians themselves. So, Naturally, there will be political interference. It will be very honest sayings if said that, Lokpal should only take matters relating to politicians and bureaucrats and not judges. For the judges, an entirely different, independent, and exclusive mechanism should be there. On the other hand, if the judges are included, then the public shouldn’t be allowed directly to initiate action, the grievance should be processed by the committee, this will then manage frivolous cases from infringing the independence of the judiciary.

Dream of Judicial Accountability And The Shocking Reality Of The Judiciary

In the Arundhati Roy case, the problem arose as a result of the decision of the SC, which ordered the concerned state governments to raise the height of the Sardar Sarovar Dam up to 90 ft. This came as a great disappointment to the Narmada Bachao Andolan as it would lead to more submergence in the nearby villages. This was severely criticized and a notice of contempt was served against Arundhati Roy, Medha Patkar, and advocate Prashant Bhushan. The three, however, asserted that they were exercising their freedom enshrined in the Constitution. The court held Arundhati Roy guilty and sentenced her to one-day imprisonment and a fine of Rs. 2000. What was shocking and rather patriarchal was condescendingly referring to her as a “woman” whom they had treated leniently by giving her one-day punishment.24 The additional immunity with which the judges have cloaked themselves was in the Justice R. Veeraswamy case, in which it was declared that judges of SC or HC cannot be subjected to investigation in any criminal offense of corruption, or an FIR being registered against them without the prior permission of the CJI. Again it’s not likely that the CJI will allow such permission, as it can bring shame to the entire Judiciary.

Conclusion and Suggestions

Here are a few suggestions:

The Principle of the Rule of Law should be applied to the Judges also.
There should be a transparent procedure for the appointment of Judges.
Ethics and a Model Code of Conduct must be followed by the Judges.
There should also be an impartial procedure for the removal of judges. There should be a Separate Commission for the removal of Judges. The process should not depend only on the Politicians. Though only the legislature has the law-making power, in reality, we see that the Judiciary is creating so many laws through judgment. The duty of the Judiciary is nothing but to interpret the Laws made by the legislature whether the Law is according to the constitution or not. But the higher Court has given so many judgments which are contrary to the existing law and the interesting thing is that the maximum number of times the Court does not declare that the existing law is unconstitutional. Even sometimes Court said that the existing law is constitutional. But when they are giving judgment, the judgment is contradictory to the existing law. This attitude of the judiciary is very harmful to democracy. Judicial Independence in India has put a question on the Public Accountability of the Judges, which cannot be solved easily in the absence of concrete laws on the subject. Hence, the creation of new laws on the issue is the need of the hour for the sake of establishing transparency in the activity of the Judges.
SNEHA SINGH
LLM BATCH
LOVELY PROFESSIONAL UNIVERSITY PHAGWARA

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